By Chantal M. Cattermole, Alison Colpitts and Abigail Choi 

Over the past few years, COVID-19 vaccines have been a polarizing topic in family law. Last year, Clark Wilson reported on a decision from the Ontario Superior Court of Justice which went against the trend of cases that had developed in which parents in favour of vaccination were granted authority to choose COVID-19 vaccines for their children. In that case, the mother had sole decision-making authority pursuant to a Final Order over two of the parties’ children. The father applied to court for an order to have the children vaccinated against COVID, but the judge refused the father’s application and maintained the mother’s decision-making authority.

Earlier this month, the Court of Appeal for Ontario in J.N. v. C.G., 2023 ONCA 77, set aside that decision and gave the father limited decision-making authority in relation to the children’s COVID-19 vaccines. The Court of Appeal found that in the lower court, the mother relied on a documents that didn’t meet the standards to be admitted as evidence. Much of the mother’s evidence was internet sources such as self-publicized websites, purported medical journals, or from individuals who claimed to be experts in their field, which the Court determined were unreliable. The Court of Appeal concluded that the judge made a mistake by not following the rules of evidence when he relied on the mother’s evidence and when he appeared to accept her sources as “expert evidence”.

“The authors cited by the [mother] – as leaders in their field – seems to be based on nothing more than their ability to either create a website or be quoted in one. There is no apparent or verifiable expertise.”

The Court of Appeal was also critical of the judge’s review of the father’s evidence. The father had submitted as evidence a number of Government of Canada documents about the importance of paediatric vaccination against COVID-19 as well as general information about the vaccines. The judge wrongfully drew analogies to residential schools and internment camps as a reason to doubt government sources generally. The Court of Appeal found that the judge failed to meaningfully analyze any of the father’s evidence and erred when he characterized it as “somewhat narrow and repetitive”. The judge also didn’t consider the rules of evidence in his review of the father’s materials and made an error in rejecting the father’s evidence in favour of the mother’s evidence which itself was not reliable.

An important takeaway from this case is that the Court of Appeal clarified that the onus in these types of cases is on the parent who objects to a Health Canada-approved medication to establish why a child should not receive the medication. This is an important and clear articulation of the law from Ontario’s highest court.

Clark Wilson LLP’s family law team is happy to assist you with any questions you may have about vaccines and health-related decisions in the family law context.